The applicant, a national of Syria, requested international protection on 1 January 2022, claiming fear of arrest and death upon return due to being positioned as an opponent by the Syrian regime. On 27 February 2023, the Federal Office for Foreign Affairs and Asylum (BFA) rejected his application, issued a return decision, and set a period for voluntary departure. The applicant appealed to the Federal Administrative Court (BVwG), which dismissed the appeal. The BVwG rejected the claim of persecution, finding no evidence that the applicant attracted the attention of Syrian authorities and concluding that he would not face persecution or struggle to meet basic needs upon return. The applicant then appealed this decision to the Supreme Administrative Court.

The Supreme Administrative Court declared the appeal on a point of law inadmissible with regard to the failure to grant asylum status because it did not raise a fundamental legal question or it did not show that the BVwG’s assessment of evidence was unreasonable. The appeal on a point of law concerning the failure to grant subsidiary protection status was declared admissible.

The court referenced to the CJEU judgment in PG v Bevándorlási és Menekültügyi Hivatal (C-406/18, 19 March 2020), emphasizing that the decisions on refugee or subsidiary protection status must be based on an individual assessment of the applicant’s personal circumstances to determine if the conditions for granting such status are met. It highlighted the importance of referring to EUAA Country Guidance and UNHCR guidelines in this process. The court referred to its case-law, according to which interpretation Article 11(3) of Regulation (EU) 2021/2303 requires Member States to take into account the relevant EUAA Country Guidance when examining applications for international protection.

The court noted that the BVwG’s refusal to grant subsidiary protection was based on an assessment that the return to Damascus would not place the applicant in an immediate combat zone and that there was no real risk of treatment contrary to Articles 2 or 3 ECHR due to a lack of shelter and food. However, the court emphasised that the BVwG had failed to address personal security concerns. The court observed widespread human rights violations across Syria, particularly in the regime-controlled areas, where arbitrary arrests, torture, and enforced disappearances were systematically used to control and intimidate civilians. Individuals perceived as opposing or criticizing the regime faced a particularly high risk of torture. It noted that the human rights situation was described as "catastrophic," with no conditions for a sustainable and dignified return for refugees. There was no long-term, reliable protection for returnees, leaving them vulnerable to arbitrary state repression, including arrests and torture, with their safety highly dependent on individual circumstances. The country findings indicated that the lack of legal certainty and personal security threats often prevent safe returns, particularly in regime-controlled areas like Damascus. The court also noted that most of EU Member States and UNHCR continued to assess that Syria is not safe for refugee return. The court pointed out that the BVwG did not address all relevant aspects in its decision, and did not reflect the relevant EUAA Country guidance - Syria (April 2024) but merely quoted some excerpts of the EUAA Country of Origin Information – Country Focus Syria (October 2023).

Moreover, the court held that the BVwG did not address possible individual risk factors in the applicant’s case, such as participation in demonstrations and having relatives granted asylum in Austria, even though these factors were relevant to assessing the overall risk, despite not meeting specific convention grounds. Due to these deficiencies in reasoning, the decision to deny subsidiary protection was deemed unlawful and annulled for procedural errors.